The Court of Appeal recently upheld a first instance decision where it was held that a passenger had capacity to consent to being driven by a drunk driver and the appropriate reduction for contributory negligence was found to be 20%.

Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698

The Court of Appeal found that the decision of the High Court was sound. The judge had been right to assess the Claimant’s actions, in travelling as passenger to a drunk driver at the relevant time, by the standards of a reasonable, competent and prudent adult.

Had the Court of Appeal upheld the appeal, this would have potentially allowed future claimants to argue that their intoxication was such that they were unable to appreciate the risk in travelling with a drunk driver. Intoxication is not a characteristic relevant to the determination of the appropriate standard of care. This can be compared to children for example, and the relevance of their age, when determining contributory negligence.

Lord Justice Underhill highlighted that there may be occasions when an intoxicated individual may not be contributory negligent, such as a “person who while unconscious through drink is put by friends or others into a car which is then driven by an (evidently) drunken driver.” Similarly, there may be occasions when “a person who is not totally unconscious may nevertheless be in a state where they are incapable of making a decision.” The Court of Appeal made clear that the line between voluntary and non-voluntary conduct was to be determined by a judge. However, where this decision is that the conduct was voluntary, the conduct is assessed by the standards of a reasonable, competent and prudent adult.

Background

The Claimant was an unrestrained passenger in a vehicle which veered onto the wrong side of the road. The vehicle was involved in a head-on collision with a lorry. The Claimant was catastrophically injured. Prior to the accident, the Claimant and the driver had been drinking together. The Claimant had been seated originally in the front passenger seat but before the journey started, and whilst awake, he was moved to the rear passenger seat.

Handing down judgment, His Honour Judge Robinson found that the lack of a seatbelt did not have any effect on the Claimant’s injuries, as he would have suffered catastrophic head injuries in any event. However, it was held that the Claimant should have appreciated the driver had drunk too much alcohol to be fit to drive, and that “if the Claimant had capacity to consent to a change of position in the car… he also had capacity to consent to being driven in the car.”

HHJ Robinson concluded that the appropriate test was to assess what a reasonable man in the Claimant’s shoes would have done. A reasonable man is able to make an assessment of a driver’s fitness to drive and would have made this assessment and “inevitably concluded that [the driver] had consumed so much alcohol that his ability to drive safely was impaired”.

The Claimant was held to be 20% contributory negligent for his injuries.

Appeal

The Court of Appeal noted that there were four matters in issue on the appeal and considered each in turn.

1. Whether the judge had wrongly applied a test of capacity under the Mental Capacity Act 2005 and reversed the burden of proof in relation to the issue of contributory negligence

Lord Justice Dingemans, giving the lead judgment, found that the judge could not be criticised for addressing the issue of capacity when this had been put in issue on behalf of the Claimant. In the Particulars of Claim the Claimant had pleaded that he had been placed in the rear seat by the driver who knew that the Claimant “was unable to reach a capacitous or informed decision as to whether he wished be driven away”.

The Court of Appeal concluded that all the judge had done was “point out that a person is presumed to have capacity until the contrary is proved, and this did not amount to an impermissible reversal of the burden of proof in relation to the issue of contributory negligence.”

2. Whether the judge's findings of fact were properly made

The first instance judge was aware of the evidential limitations in the absence of witness evidence from the Claimant or driver available. Counsel for the Claimant had suggested that the judge should have considered other possibilities such as a group of people assisting the driver to move an unconscious Claimant to the rear of the car. Dingemans LJ stated this was “entirely speculative” and the layout of the car meant that the Claimant would have been awake in order to facilitate the move.

The findings of fact were soundly based on the known facts and reasonable inferences drawn from those facts.

3. Whether the judge wrongly applied a test of the objective reasonable, competent and prudent passenger when the Claimant was too intoxicated to be held responsible for his actions

The Claimant referred to the Australian case of McPherson v Whitfield which suggested a passenger should not be held responsible for a failure to take care of their safety if they were placed into or induced to enter the car of an intoxicated driver. Dingemans LJ referred to another Australian case, Morton v Knight, which applied an objective test of the reasonable man to the passenger. This was endorsed in Joslyn v Berryman where McHugh J stated “an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence.”

The English decision of Owens v Brimmell was identified. This applied the objective approach. A drunken passenger accepted a lift from a drunk driver and was found to be 20% contributorily negligent. Although it was held that there was no Court of Appeal decision explicitly endorsing Owens, other cases also supported a finding that drunkenness of the passenger will not avoid a finding of contributory negligence. In Booth v White, it was held the passenger “could not rely on his own drunkenness” and it should be assessed what a reasonable man would have done in Mr Booth’s shoes.

Dingemans LJ concluded that HHJ Robinson had been right to judge the Claimant’s actions at the relevant time by the standards of a reasonable, competent and prudent adult. A reasonable man in the Claimant’s position when he assisted the driver to move him from the front of the car to the back would have appreciated that the driver had drunk too much to drive safely.

4. Whether the judge's assessment of 20 per cent contributory negligence should be reduced

The Court of Appeal found that there was nothing to show that the judge’s apportionment of responsibility had been wrong. The facts and matters had been carefully considered and the judge had rightly identified the driver as the person to bear the substantial part of responsibility.

Outcome

After considering the issues Dingemans LJ dismissed the appeal. The judge was entitled to find the Claimant had capacity at the relevant time, the findings of fact were properly made, the test of a reasonable, prudent and competent person had been applied correctly, and the 20% contributory negligence was a finding the judge was entitled to make.

What can we learn?

  • It was noted that a finding of contributory negligence is, “like making findings of facts, very much a decision for the trial judge to make”. The Supreme Court in Jackson v Murray had emphasised that there is a limited basis on which a Court of Appeal can interfere with the trial judge’s apportionment of responsibility.
  • It was acknowledged that there was no evidence from the Claimant, who was unable to, and no evidence from the driver who had died at the scene. In cases such as these, forensic investigations are crucial in establishing whether parties were wearing seatbelts, seat positions in the vehicle(s) and vehicle speeds.
  • Lord Justice Underhill agreed that the appeal should be dismissed and also commented that when considering contributory negligence the courts have recognised that it is necessary to take into account at least some characteristics of the Claimant. It was Underhill’s view that “it is clear that the law in this jurisdiction has come down against treating the fact that the claimant is drunk as a characteristic that can be taken into account in deciding whether he or she took reasonable care for their own safety.” It was his view that the law applicable in England and Wales is in conformity with McHugh J in Joslyn v Berryman that “the relevant conduct is accepting a lift from a person whose driving capacity is known, or could be reasonably found, to be impaired by reason of intoxication.”